Citation Nr: 18155275 Decision Date: 12/03/18 Archive Date: 12/03/18 DOCKET NO. 15-41 123A DATE: December 3, 2018 ORDER An effective date prior to April 24, 2013, for VA dependency compensation benefits based on the addition of the Veteran's spouse (T) is denied. FINDINGS OF FACT 1. The Veteran and (P) were divorced in August 2006. 2. The Veteran and (T) were married in May 2008. 3. The Veteran filed a claim for the addition of a spouse (T) as a dependent for additional compensation purposes that was received by VA on April 24, 2013. 4. No formal or informal notice of the Veteran’s marriage to T was received by VA prior to April 24, 2013. CONCLUSION OF LAW The criteria for an effective date earlier than April 24, 2013, for VA dependency compensation benefits based on the addition of (T), the Veteran’s spouse, have not been met. 38 U.S.C. §§ 1115, 5110, 5111, 5107(b) (2012); 38 C.F.R. §§ 3.31, 3.155, 3.401, 3.501 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION It appears that the Veteran served on active duty from September 1979 to September 2005, although verification of all of these dates is not currently in the file. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 decisional letter of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran is unrepresented in this appeal. The issue of whether the creation of an overpayment of VA compensation benefits in the amount of $5,895.00 was valid is addressed in a separate Board decision. Duties to Notify and Assist The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Laws and regulations A veteran rated at not less than 30 percent shall be entitled to additional compensation for dependents. 38 U.S.C. § 1115; 38 C.F.R. § 3.401 (b)(2). With regard to an appeal for additional compensation or pension for dependents, the effective date of an award will be the latest of the: (1) date of claim. This term means the following, listed in their order of applicability: (i) date of veteran’s marriage, or birth of his or her child, or adoption of a child, if the evidence of the event is received within one year of the event; otherwise (ii) date notice is received of the dependent’s existence, if evidence is received within one year of VA’s request; (2) date dependency arises; (3) effective date of the qualifying disability rating provided evidence of dependency is received within one year of notification of such rating action; (4) date of commencement of veteran’s award. 38 U.S.C. § 5110(f); 38 C.F.R. § 3.401(b). Prior to March 24, 2015, a claim was “a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit.” 38 C.F.R. § 3.1(p) (2018). An informal claim is “[a]ny communication or action indicating intent to apply for one or more benefits.” 38 C.F.R. § 3.155(a) (2018). VA must look to all communications from a claimant that may be interpreted as applications or claims - formal and informal - for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). The essential elements for any claim, whether formal or informal, are: (1) an intent to apply for benefits; (2) an identification of the benefits sought; and (3) a communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits). Payment of monetary benefits based on an award or an increased award of compensation may not be made to an individual for any period before the first day of the calendar month following the month in which the award or increased award became effective. 38 U.S.C. § 5111(a) (2012); 38 C.F.R. § 3.31 (2018). Background Facts Records indicate that the Veteran married P in July 1984. The Veteran and P were divorced on August 1, 2006. The Veteran married T on May 16, 2008. On April 24, 2013, the Veteran submitted a Declaration of Status of Dependents notifying VA of the Veteran's divorce from P and marriage to T. In a March 2006 rating decision, the Veteran was assigned disability ratings bringing his combined service-connected disability rating from 10 percent to 50 percent, effective October 1, 2005. The March 31, 2006 notification letter informed the Veteran that P had been established on the award as a dependent spouse and that he was receiving additional funds for P as a spouse. The letter also notified the Veteran that he was to notify VA immediately should there be any change in the status of his dependents. The Board will now apply the background facts to the provisions of 38 C.F.R. § 3.401(b). I. Date of claim The Veteran married T in May 2008 but did not provide evidence to VA of the marriage to T within one year of the marriage. As such, the date of claim in this case is April 24, 2013, the date notice was received of the dependent’s existence (the marriage to T). See 38 C.F.R. § 3.401(b)(1)(ii). II. Date dependency arose The date dependency arose in this case is May 16, 2008, the date of the Veteran's marriage to T. See 38 C.F.R. § 3.401(b)(2). III. Effective date of the qualifying disability rating In a March 2006 rating decision, the Veteran was assigned disability ratings bringing his combined rating from 10 percent to 50 percent, effective October 1, 2005. Since evidence of dependency for T was not received within one year of notification of the March 2006 rating decision, the Board finds that October 1, 2005 is not applicable as a possible effective date for the claim on appeal. See 38 C.F.R. § 3.401 (b)(3). IV. Date of commencement of the Veteran’s award. The date of commencement of the Veteran’s award is October 1, 2005. Analysis As noted, the effective date in this case will be the latest date derived by applying the provisions of 38 C.F.R. § 3.401(b). In doing so, the latest date among those provisions is April 24, 2013. Various correspondence in the file made the Veteran aware that additional disability compensation is awarded if a veteran proves that he has dependents. VA notification letters, including those dated in March 31, 2006, December 28, 2007, and December 29, 2008, requested that the Veteran inform VA of any changes to his marital status. Nevertheless, the Veteran did not contact VA at any time prior to April 24, 2013 to inform VA of the divorce from P or the marriage to T. Moreover, a review of the Veteran’s claims file reveals no copies prior to April 24, 2013 of his marriage certificate to T or a divorce decree pertaining to his previous marriage to P. The Veteran asserts that his correct and current marital information is and has been available in his records associated with the Defense Finance and Accounting Service (DFAS) and with the Defense Enrollment Eligibility Reporting System (DEERS). Such notification, unfortunately, does not constitute notice to VA. The Board finds the date of commencement of the Veteran’s award for T is May 1, 2013 because that is the start of the month after the effective date of April 24, 2013. 38 C.F.R. §§ 3.31, 3.401(b)(4). Based on these findings, and applying the regulation that provides that the proper effective date for additional compensation for dependents, the Board finds that an effective date earlier than April 24, 2013 (May 1, 2013) for the addition of T as a dependent is not warranted. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD David Nelson